EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

03.06.18

Calling Genetics and Other Things “Life Sciences” Does Not Turn Nature Into Patentable Science

Posted in America, Australia, Patents at 1:13 pm by Dr. Roy Schestowitz

Association for Molecular Pathology v. Myriad Genetics, Inc.
Reference: Association for Molecular Pathology v Myriad Genetics, Inc. | Wikipedia

Summary: The old riddle about whether naturally-occurring phenomena are patentable or not, in light of some very recent news (the past couple of days)

THE USPTO does not, in general, permit patents on genetics. The EPO has just opposed it, so it can be seen as hanging in the balance (the appeal boards will need to step in and decide).

A few days ago we wrote about life patents (e.g. patents on cancer treatments which aren't even drugs/chemicals). There are many different aspects to “life sciences” (a relatively new term if not buzzwords) and they should be considered in isolation: there’s genetics, there’s medicine, there’s treatment, there’s medical equipment and so on. They’re not the same thing.

Days ago we revisited the scam which Allergan set up with the Saint Regis Mohawk Tribe. IAM, not to our surprise, wrote about it under the “life sciences” banner yesterday. Adam Houldsworth wrote: [via]

Allergan sovereign immunity strategy rejected – Allergan’s effort to make patents relating to its Restasis dry-eye treatment exempt from Patent Trial and Appeal Board cancellation proceedings by transferring them to the Saint Regis Mohawk Tribe suffered a serious blow last week. The board ruled that the tribe’s sovereign immunity does not extend to inter partes review, and that a Restasis patent should be subject to proceedings initiated by Mylan. This followed months of controversy surrounding the deal, which was seen by some as an attempt to circumvent the patent system and by others as a means of protecting important assets from a problematic administrative proceeding. The St Regis Mohawks have stated they will appeal the PTAB decision.

These are not “assets” but monopolies and PTAB is not “a problematic administrative proceeding.” But remember that this is IAM, a PTAB basher like Watchtroll, Patently-O, Patent Docs and a few other blogs we monitor for their anti-PTAB slant.

Yesterday we saw this blog post from an anti-PTAB site called Anticipat. This company is selling itself as a ‘cure’ to PTAB’s work and it seems to miss the simple fact that if a patent is abstract, then it’s invalid. Full stop. Here’s the latest rant:

We have previously reported that PTAB judges, like Examiners, are measured by a quota-based production system. For PTAB judges, the quota is based on the number of decisions they author. It is no secret that this production system prompts some Examiners and PTAB judges at times to get creative with practices to most easily meet their quotas. Here, we look at some recent decisions that show a pattern of PTAB judges deciding a Section 101 rejection without looking to the remaining pending grounds on appeal.

Why should they? Again, like we said above, if Section 101 applies (e.g. Alice), then it’s over. We understand that many patent trolls and parasites are afraid of PTAB. It undoes the damage caused when patents were granted in a hurry and/or in error.

“Another day of watching Supreme Court opinions to see if Oil States will come out,” wrote one lawyer this week. “Going to be at least another two weeks.”

He’s wasting his time. Oil States will likely be ruled unanimously in favour of PTAB and its much-needed IPRs. The patent system is a lot better now. SCOTUS has already named “trolls” and bemoaned the effect of frivolous patent litigation. It not only gave Alice but also Mayo and Myriad. PTAB actually enforces these; so why would SCOTUS weaken PTAB now?

The situation is a tad different in Australia, probably due to pressure from the likes of CSIRO. The Australian attorney Mark Summerfield is now ranting about medical/clinical trial patents facing an uphill battle. To quote:

From a policy perspective, getting the balance right is particularly important in the case of pharmaceutical products. If it is too difficult to obtain a valid patent, there may be insufficient incentive for companies to invest billions of dollars in new drug development. On the other hand, it is important to keep in mind that, one way or another, it is the wider community – either individually, or through taxes in countries where healthcare is substantially subsidised by government – that ultimately pays for that development, through the higher prices charged for patented drugs. Allowing patents to be granted too easily therefore may therefore represent a significant social cost.

Australia’s attitude towards patents on life was already mentioned here over the weekend. Patent Docs, a patent maximalists’ site, wrote about it a short while ago. It’s about Myriad again. To quote:

When the Australian High Court ruled against the patentability of isolated naturally occurring genes in the Myriad decision, a number of commentators believed that the decision would ultimately invalidate claims directed to methods involving the practical application of genes. A recent Federal Court decision, however, has confirmed that claims directed to methods involving the correlation of gene sequences to a particular trait in cattle are patent eligible subject matter in Australia.

Time will tell where the EPO stands on Myriad-type cases. At the moment it looks like there are forces tugging at both directions. Our position on that has always been the same: while we support affordable life-saving drugs and usually generics (access to medicine designed to maximise public health), we aren’t against patents on drugs; what we’re against are attempts to patent life itself, i.e. chromosomes, genome, antibodies, DNA sequences and so on.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 25/9/2018: Mesa 18.1.9, New Fedora Beta, and Oracle Solaris 11.4 SRU1

    Links for the day



  2. Technology Groups and Innovators Bemoan Attempts to Override the Courts to Promote Patent Maximalists' Agenda by USPTO Director Andrei Iancu

    The U.S. Patent and Trademark Office (USPTO) is not listening to the views of actual innovators; it seems to be serving just the patent and litigation 'industry' (i.e. those who profit from illegitimate patents and baseless lawsuits)



  3. Patent Trolls Roundup: Microsoft's Patent Troll Collapses, Samsung Fuels Patent Troll Sisvel, and Patent Troll VirnetX Wants Apple's Cash

    Microsoft's largest patent troll continues to experience a mass exodus (in addition to all the layoffs), Sisvel receives armament from Samsung, and VirnetX carries on pretending -- to shareholders at least -- that it will get a lot of money out of Apple (albeit an appeal will likely prevent that altogether)



  4. António Campinos Goes to UPC-Hostile Country, UPC Continues to Languish and Team UPC Carries on Pushing for Software Patents in Europe (Courts Also)

    The Unified Patent Court (UPC) fantasy has fizzled, but those striving to interject software patents agenda into Europe from the back door (e.g. labeling these "AI" or ignoring the stance of actual courts) aren't giving up just yet



  5. The Man Whose Actions Could Potentially Land Team Battistelli in Jail

    As new evidence and more material surfaces about Benalla, Battistelli tries hard to hide himself from French media, knowing that he might be criminally culpable



  6. Links 24/9/2018: Linux 4.19 RC5 From Greg Kroah-Hartman, OpenShot 2.4.3 Released

    Links for the day



  7. Reader's Article: Affaire Benalla Strongly Connected to EPO/OEB/EPA and Former President Benoît Battistelli

    A Macron scandal has led French media to finally (and years too late) exploring some of the much more explosive scandals at the EPO, revealing some interesting new details in the process



  8. Language Patent Lawyers Are Using to Warp the Debate and Decrease Public Understanding of Patents

    The patent microcosm, trying to get the public all baffled/confused about the patent system, continues (mis)using words to convey things in misleading ways



  9. USPTO FEES ACT Makes the US Patent Office a Money-Making Machine That Systematically Disregards Patent Quality

    The lingering issues with patent assessment at the US patent office, which unlike US courts isn't quite so impartial an actor (it benefits more from granting than from rejecting)



  10. Guest Post on Ronan Le Gleut and Benalla at the French Senate (in Light of Battistelli's Epic Abuses)

    Thoughts on the possibility that Battistelli will belatedly be held accountable for his abuses, knowing that a senator representing French Citizens residing Abroad comes from the EPO



  11. A Lot of US Patents Are Entirely Bogus, But Apple Was Willing to Pay for Them

    Apple's resistance to Qualcomm's patent aggression was preceded by very heavy ("thermonuclear" by Steve Jobs' description/words) patent wars against Android and even legitimisation of clearly bogus software patents from Amazon



  12. 'Owning' Nature, Thanks to Patent Insanity and People Who Profit From That

    Questionable patents on things that always existed and are merely being explained or reassembled; those sorts of patents typically serve to merely discredit the patent system and courts too increasingly reject such patents (e.g. SCOTUS on Mayo Collaborative Services and Myriad Genetics, Inc.)



  13. Patents Stranger Than Fiction and 'Protection' From Fictional Things

    Fictional things are being treated like "inventions" and insurance companies now look to exploit fear of fictional things (man-made concepts), such as ownership of mere ideas or words



  14. Benoît Battistelli Refuses to Talk to the Media About Bringing Firearms to the EPO

    Benoît Battistelli's highly aggressive approach has attracted the attention of French media; Battistelli has reportedly refused to comment on that matter, knowing that he lacks a defense (same thing happened after he had hauled millions of EPO euros to his other employer)



  15. Patent Law Firms Have Become More Like Marketing Departments With an Aptitude for Buzzwords

    What we're observing, without much reluctance anymore, is that a lot of patent lawyers still push abstract software patents, desperately looking for new trendy terms or adjectives by which to make these seem non-abstract



  16. Interlude: The Need to Counter Misinformation From the Patent and Litigation 'Industry'

    24,500 posts reached; so we pause and reflect, seeing that many sites/blogs of patent maximalists gradually ebb away



  17. Advocacy of the Unitary Patent System Has Become Almost Identical to the 'Leave' (Brexit) Campaign

    The charades of Team UPC carry on in Kluwer Patent Blog — a blog which for a very long time served no purpose other than Unified Patent Court (UPC) advocacy



  18. Open Invention Network is Rendered Obsolete in the Wake of Alice and It's Not Even Useful in Combating Microsoft's Patent Trolls

    Changes at the US Patent and Trademark Office (USPTO) and in US courts' outcomes may have already meant that patent trolls rather than software patents in general are a growing threat, including those that Microsoft is backing, funding and arming to put legal pressure on GNU/Linux (and compel people/companies to host GNU/Linux instances on Azure for patent 'protection' from these trolls)



  19. Bogus Patents Which Oughtn't Have Been Granted Make Products Deliberately Worse, Reducing Innovation and Worsening Customers' Experience

    How shallow patents — or patent applications that no patent office should be accepting — turn out to be at the core of multi-billion-dollar cases/lawsuits, with potentially a billion people impacted (their products made worse to work around such questionable patents)



  20. EPO is Like a Patent Litigation (Without Actual Trial) Office, Not a Patent Examination Office

    Examination of patent applications isn't taken seriously by an office whose entire existence was supposed to be about examination; bureaucracy at the top of this office has apparently decided that the sole goal is to create more demand (i.e. lawsuits) for the litigation 'industry'



  21. Philippe Cadre From the French National Institute of Industrial Property (INPI) Wants to Join António Campinos

    Yet another example of INPI's creeping influence if not 'entryism' at the EPO and this time too patent quality isn't a priority



  22. Links 22/9/2018: Mesa 18.2.1, CLIP OS, GPL Settlement in Artifex/First National Title Insurance Company

    Links for the day



  23. Links 21/9/2018: Cockpit 178, Purism 'Dongle'

    Links for the day



  24. Criticism of Unitary Patent (UPC) Agreement Doomed the UPC and Patent Trolls' Plan -- Along With the Litigation Lobby -- for Unified 'Extortion Vector'

    The Unitary Patent or Unified Patent Court (UPC) was the trolls' weapon against potentially millions of European businesses; but those businesses have woken up to the fact that it was against their interests and European member states such as Spain and Poland now oppose it while Germany halts ratification



  25. It Wasn't Judges With Weapons in Their Office, It Was Benoît Battistelli Who Brought Firearms to the European Patent Office (EPO)

    The EPO scandals deepen in light of a very major scandal which has occupied the French media for a couple of months



  26. Links 20/9/2018: 2018 Linux Audio Miniconference and Blackboard's Openwashing

    Links for the day



  27. Links 19/9/2018: Chromebooks Get More DEBs, LLVM 7.0.0 Released

    Links for the day



  28. Links 18/9/2018: Qt 5.12 Alpha , MAAS 2.5.0 Beta, PostgreSQL CoC

    Links for the day



  29. Today's European Patent Office (EPO) Works for Large, Foreign Pharmaceutical Companies in Pursuit of Patents on Nature, Life, and Essential/Basic Drugs

    The never-ending insanity which is patents on DNA/genome/genetics and all sorts of basic things that are put together like a recipe in a restaurant; patents are no longer covering actual machinery that accomplishes unique tasks in complicated ways, typically assembled from scratch by humans; some supposed 'inventions' are merely born into existence by the natural splitting of organisms or conception (e.g. pregnancy)



  30. The EPO Has Quit Pretending That It Cares About Patent Quality, All It Cares About is Quantity of Lawsuits

    A new interview with Roberta Romano-Götsch, as well as the EPO's promotion of software patents alongside CIPA (Team UPC), is an indication that the EPO has ceased caring about quality and hardly even pretends to care anymore


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts